Editorial

What is wrong with this picture?  It has been 5 years since TAC and the CCD Housing Task Force published our first policy report about the negative impact of “elderly only” housing policies.  It has been over 10 years since we first warned federal officials about the potentially negative consequences of these laws – unless a sustained and pro-active effort was made to prevent discrimination, create new housing for people with disabilities, and oversee the implementation of these laws by PHAs and HUD assisted housing providers.  

Perhaps the most surprising aspect of our work on this issue has been the difficulty we have had – and continue to have – in our effort to explain to federal officials what is a very simple story.  Ten years ago, there were over one million units of HUD subsidized housing that people with disabilities could access, and now 25 percent of them are gone.  It seems like it would be such a simple issue to quantify…with an inventory of HUD assisted housing!  

For this issue of Opening Doors, we relied on data from HUD and two federally funded reports, including one conducted by the U.S. General Accounting Office (GAO).  We must point out that despite our use of the information contained in the GAO report to assess the impact of elderly only housing designation, the GAO concluded in 1998 that elderly only designation had not negatively affected people with disabilities.  Their conclusion was astonishing – and we believe erroneous – for several reasons:  

1. The GAO came to the shocking conclusion that if owners had illegally implemented elderly only housing policies prior to 1992 – in other words, if they had previously discriminated against people with disabilities by illegally restricting occupancy to elderly households before the 1992 law was passed – these units somehow did not count when assessing the impact of the law; and

2. The GAO report concluded that as long as HUD assisted housing owners still admitted a few people with disabilities – even if it were only a small percentage of the units in a development or only to people with physical disabilities – the owner had not implemented elderly only housing.  We believe that owners who were required to admit people with disabilities to all of the units in a development before 1992 – and now only admit people with disabilities to a few set-aside units – can be considered as having elderly only policies in place at their property!

 Fortunately for people with disabilities, key members of Congress did not consider the GAO report as the “final word” on elderly only housing policies.  

What should this picture look like?  No one is arguing that elderly only housing laws should be undone.  That approach was abandoned long ago, and was never realistic given the broad support for housing for elderly people.  But what we have been arguing, and will continue to argue, is that federal housing policies have virtually ignored people with disabilities, especially since 1992.  The single exception is Congress’s commitment to provide new Section 8 vouchers linked to designation.  

Thus far, HUD has completely ignored the discriminatory practices linked to designation.  Section 811 funding, which could help replace the supply of lost housing, has been cut.  Little effort has been made to ensure that state and local housing officials direct a reasonable amount of HOME funds towards projects that people with disabilities can afford.  

Perhaps there is a little good news in this picture.  Disability advocates are pleased to see the findings in the HUD funded study conducted by Abt Associates.  More than any single document, the Abt Associates study proves what disability advocates have been saying for years about designation.  TAC and the CCD Housing Task Force urge you to use this report to engage in a dialogue with public and assisted housing providers in your community.  Convince them that they need to be thinking about both groups – people with disabilities as well as elderly households.  

The Editors

What's Wrong continued from top

Elderly Only Housing Laws

Before 1992, according to federal law, owners of certain HUD subsidized housing developments were required to make these apartments available to both elderly households and non-elderly people with disabilities on an equal basis.  Elderly only housing laws (beginning with the Housing and Community Development Act of 1992) fundamentally altered this equal access policy by permitting owners to greatly restrict or completely prohibit non-elderly people with disabilities from moving into these properties.  These federal policies are often referred to as “elderly only designation” and affect two different types of HUD subsidized rental housing:  

HUD Public Housing: Elderly/disabled public housing buildings owned by Public Housing Authorities (PHAs).  Nationwide, there are approximately 500,000 studio and one-bedroom public housing units currently subsidized by HUD.  This housing is affordable to the lowest income people with disabilities because generally tenants are required to pay only 30 percent of their income for rent and utilities; and HUD Assisted Housing: Privately owned federally assisted housing financed through various HUD housing production programs (i.e. Section 236, Section 211(d)(3), Section 8 New Construction and Substantial Rehabilitation, etc.) that have been combined with long-term Section 8 contracts to make the housing affordable to the lowest income people.  At the time that elderly only designation laws were passed, there were over 600,000 efficiency and one-bedroom units in HUD’s assisted housing “portfolio.”  

It is important to note that before elderly only housing laws were passed, these 1.1 million apartments were virtually the only federally subsidized housing units available for people with disabilities, including units that were barrier free or that could be modified at no cost to the tenant.  After the Fair Housing Amendments Act and the ADA were passed, it became much easier – at least theoretically – for people with disabilities to get on waiting lists and eventually move into this housing.  

As the number of people with disabilities moving into this housing increased in the early 1990s, a great debate ensued which unfortunately pitted elderly households against non-elderly people with disabilities.  The debate centered around the question of whether the “mixing” of elderly households and non-elderly people with disabilities in the same buildings was a feasible housing policy.  In the end, Congress decided that the owners of these 1.1 million units could “reserve” them – subject to certain conditions discussed below – primarily for elderly households.  Despite the obvious negative impact this decision would have on people with disabilities, until 1997 there was no new funding provided to make up for the loss of subsidized housing for people with disabilities.  

Under the designation laws, PHAs are allowed to create disabled only buildings as well as elderly only buildings.  Some policy makers thought that by permitting disabled only buildings, the federal government would solve the problem of where younger people with disabilities could live.  The disability community has always been opposed to this “solution” because: (1) most people with disabilities do not want to live in disabled only housing; and (2) disabled only housing encourages PHAs to steer people with disabilities to poorly maintained housing in marginal neighborhoods while reserving the more attractive housing in desirable locations for elderly households.  

Elderly Only Designation Process

To assess the full impact of elderly only designation laws on the supply of subsidized housing available to people with disabilities, it is important to understand the basics of how designation policies are actually implemented by housing providers.  The two types of HUD subsidized housing referenced earlier have very different requirements for designating elderly only housing.  

HUD Public Housing Requirements

PHAs must obtain HUD approval to designate public elderly/disabled housing buildings as elderly only.  PHAs obtain HUD approval by submitting a PHA Allocation Plan which is intended to analyze the impact of the designation and propose alternative housing resources (i.e., Section 8 tenant based vouchers) for people with disabilities.  TAC’s review of a sample of PHA Allocation Plans indicates that some PHAs may not be requesting the Section 8 vouchers needed to replace the supply of public housing units that will no longer be available to people with disabilities.  

HUD Assisted Housing Requirements

Owners of HUD assisted privately owned housing are permitted to have elderly only policies without seeking HUD approval for these policies.  Because there are different rules that apply to the myriad of HUD programs in HUD’s assisted housing portfolio, the designation of this housing as elderly only has been very problematic.  Currently, without contacting each of these properties individually, there is no way to determine if owners and managers of HUD assisted housing are properly using elderly only policies.  As will be noted in the discussion below, this lack of an “inventory” of HUD assisted housing – combined with the complexity of the designation rules – has, at best, caused confusion and, at worst, fostered discriminatory tenant selection practices by owners and managers.  

It’s important to note that non-elderly people with disabilities living in federally subsidized housing designated elderly only are protected from displacement under federal law.  In other words, they should not be asked to move out, or be required to move out because the housing has been designated.  Nor should they be encouraged or offered incentives, such as a Section 8 voucher, to move to other housing, unless it is clearly their preference and choice to move.  

Assessing the Impact of Elderly Only Housing

Assessing the impact of designation involves two important issues:  

• Estimating the actual loss of HUD subsidized housing units available to people with disabilities as compared to the number of new subsidized housing resources created by Congress to off-set this loss; and

• Assessing the impact that designation has had on housing discrimination experienced by people with disabilities.  

More housing units are designated as elderly only every day.  Therefore, any assessment of the loss of housing from designation can be done only as a “point in time” estimate will undoubtedly increase as more buildings are designated in the future.  

In 1996, TAC and the CCD Housing Task Force published Opening Doors: Recommendations for A Federal Policy to Address the Housing Needs of People with Disabilities which predicted the negative impact that elderly only designation would have on the supply of subsidized housing available for non-elderly people with disabilities.  This report estimated that as many as 273,000 units of housing would be designated elderly only by the end of the year 2000.  This estimate represented approximately 25 percent of the efficiency and one-bedroom apartments funded by HUD with project-based Section 8 subsidies.[i]  

Exactly how accurate was the TAC/CCD Housing Task Force estimate when compared to information now available from other studies and reports?  Again, because of differences in the law, the answer to this question must be provided in two parts:  

1. The loss of HUD funded public housing units owned by PHAs; and

2. The loss of HUD assisted housing owned and managed by private owners.  

1.         Loss of Public Housing Units

HUD records indicate that through July 30, 2001 , approximately 68,500 public housing units have been designated as elderly only.  Since 1994 when HUD first began approving PHA Allocation Plans, approximately 186 PHAs have sought HUD’s permission to exclude non-elderly people with disabilities from some of their public housing buildings.  As shown in Table 1, on average approximately 9,153 units of public housing have been designated as elderly only each year since designation first became legal.  [NOTE:  These estimates do not include those units that may have been illegally designated elderly only without seeking HUD approval.]  

Elderly only designation has involved many of the largest PHAs in the United States, as well as numerous medium and smaller PHAs.  Table 2 lists a random sampling of PHAs that have HUD approved Allocation Plans and the dates they were approved.  Some PHAs have designated virtually all of their studio and one-bedroom units as elderly only leaving no supply of public housing for non-elderly people with disabilities.  Other PHAs have left one or two buildings as “mixed” elderly/disabled buildings; although, in practice, these buildings can end up being occupied primarily by people with disabilities.  Other PHAs have limited elderly only housing policies to one building, or a portion of a building, in a larger complex.   

Table 1:  Tracking the Annual Designation of Elderly Only Public Housing

   *The 1995 figures include four Allocation Plans that were approved in late 1994.

**13 PHAs that submitted approved Allocation Plans have applied a second time to HUD for additional units to be allocated elderly only.  Therefore, these PHAs have been counted twice, once for each year that they submitted an approved plan.    

Table 2: A Selection of Public Housing Agencies with Units Designated Elderly Only*

 *There are currently 186 PHAs that have Allocation Plans.  This table respresents only a sample of these PHAs.

**This Housing Authority has submitted more than one Allocation Plan for elderly only designation.  This number of vouchers represents the total designated and the date approved is the most recent approval date.

Fortunately, it is not difficult to keep track of the number of public housing units that have been designated.  HUD maintains a web site ( http://www.hud.gov/offices/pih/centers/sac/designated ) so that interested citizens can determine if a PHA has actually received HUD approval to designate housing, including the number of units designated and the date of the HUD approval.  

HUD’s web site also indicates which PHAs are awaiting approval of Allocation Plans recently submitted to HUD.  As of July 31, 2001 , HUD was reviewing 14 Allocation Plans from PHAs seeking to designate a total of over 2,000 public housing units as elderly only.  These elderly only pending plans are included in Table 3.  Under the law, HUD must respond to a PHA within 60 days of the submission to either approve or reject the plan, or to request additional information.  The burden is on HUD to review the plan promptly since a PHA Allocation Plan is automatically approved after 60 days if HUD does not respond.  

As mentioned earlier, designation laws also permit PHAs to create disabled only housing with HUD approval.  According to HUD records, only approximately 1,187 public housing units have been designated as disabled only by 14 PHAs.  This provision of the law has been troubling for the disability community because it has the potential to severely limit housing choices for people with disabilities and could increase the stigma associated with disabilities.  To date, no assessment or review of disabled only housing has been done, so the impact of these designations on people with disabilities is unclear.  Table 4 includes a complete list of all PHAs that have received HUD approval to designate disabled only housing.  

Table 3: Public Housing Agency Allocation Plans Pending HUD’s Approval for 
Elderly Only Designation as of July 31, 2001

Table 4: HUD Funded Public Housing Units Designated Disabled Only as of July 31, 2001

  Designation Estimates through 2005  

Based on the rate of designation indicated by HUD’s data, TAC and the CCD Housing Task Force project that as many as 54,000 more units of public housing may be designated elderly only from 2001 through 2005.  This estimate is based on the fact that an average of 9,000+ units have been designated each year since 1995 (9,000 units x 6 years = 54,000 units).  Because the number of PHAs seeking permission to designate units as elderly only has increased in 2000 and 2001, this estimate can be considered conservative.  

If this estimate proves accurate, it will mean that almost 25 percent of the elderly/disabled public housing financed by the federal government – more than 110,000 units – will have been removed from the housing supply available to people with disabilities.  This loss of housing opportunity will have occurred at a time when the demand for affordable housing from people with disabilities has never been greater.  With virtually no new construction of public housing being authorized by Congress, it is clear that people with disabilities will increasingly be “shut-out” of federally funded public housing.  

2.         Loss of HUD Assisted Housing Units  

Assessing the loss of HUD assisted housing units has been much more difficult for two reasons.  First, owners of this type of housing can implement elderly only policies without seeking HUD approval.  Owners must keep documentation in their files that proves they have implemented designation properly, but, unlike PHAs, they are not required to submit any type of plan to HUD.  Second, the designation rules for HUD assisted housing owners are extremely complicated.  For example, some projects must maintain a small set-aside of units (up to 10 percent) for non-elderly people with disabilities, while others are not required to do so.  As will be discussed later, because of these confusing rules – as well as for other reasons – some owners have not implemented elderly only designation properly.  

TAC and the CCD Housing Task Force have assessed the loss of HUD assisted housing in several localities (including the Commonwealth of Massachusetts and in Oakland County , Michigan ) and concluded that at least 50 percent of HUD assisted housing owners had implemented elderly only housing policies.  Information in two federal studies appears to confirm this loss of housing for people with disabilities, and suggest that it may be higher.  These federally funded studies are:  

• A HUD funded study titled Assessment of the Loss of Housing for Non-Elderly People with Disabilities completed by Abt Associates in 2000; and

• A U.S. General Accounting Office (GAO) report titled Assisted Housing Occupancy Restrictions on Persons with Disabilities completed in 1998.  

Both studies were based on a sample of projects that were eligible to designate housing as elderly only.[ii]  Because HUD does not currently have an inventory of elderly only assisted housing, the researchers were required to determine if properties selected actually qualified as elderly/disabled housing before they could begin to assess the implementation of elderly only policies.  

Both studies found that a substantial majority of HUD assisted housing owners were using elderly only tenant selection practices for some or all of the units in the property.  In 1998, the GAO study found that 71 percent of owners had tenant selection policies or practices that restricted or prohibited people with disabilities from moving into their housing developments.  The Abt Associates study (which was conducted two years after the GAO study and based on a much smaller sample) found that 64 percent of owners were using elderly only tenant selection practices to prohibit non-elderly people with disabilities from moving into their properties.  

Using the information obtained from the two federal studies, it appears certain that between 200,000 and 225,000 units of HUD assisted housing are no longer available to non-elderly people with disabilities because of elderly only restrictions.[iii]  This conclusion reinforces the earlier estimates made in the 1996 TAC/CCD Housing Task Force report.  

Study Findings  

The HUD funded study by Abt Associates surveyed 50 federally assisted housing properties in 10 Metropolitan Statistical Areas.  The researchers also assessed the physical condition of the properties.  This study found that 32 out of the 50 developments had some elderly only housing tenant selection practices in place.  Only 36 percent of the properties surveyed considered adults with disabilities under age 62 on an equal basis with elderly households for eligibility purposes as was required by all owners prior to the designation laws.  The specific findings from the study are documented below.  

Researchers interviewed the property managers and found that the written tenant selection policies for these developments did not always match the admission procedures described during the interviews.  Nor did the development’s occupancy patterns fit the patterns expected by the researchers, given the policies.  As stated in the study, “ [t]hese data suggest managers may have employed practices that illegally discriminate against people with disabilities.”  This discrimination and other inconsistencies are explored below (see Discrimination).  

Total Loss Compared to New Resources  

From HUD’s PHA Allocation Plan data and the information contained in the HUD and GAO studies, TAC and the CCD Housing Task Force estimate that between 268,500 and 293,500 units of HUD public housing and HUD assisted housing are no longer legally available to people with disabilities because of elderly only housing policies.  The data that support this estimate is provided is Table 5.  This estimate is consistent with – and may be slightly higher than – the TAC/CCD Housing Task Force estimate of 273,000 units made in 1996.  

Fortunately, Congress, in a bi-partisan effort led by Congressman Rodney Frelinghuysen of New Jersey , immediately responded to the TAC/CCD Housing Task Force estimate originally published in 1996, and began appropriating funding for new Section 8 vouchers for people with disabilities negatively affected by the implementation of elderly only policies.  Since 1997, Congress has appropriated a total of $210 million in new Section 8 funding specifically for this purpose – creating over 30,000 new vouchers that have been distributed to PHAs since that time.  

These vouchers have helped people who were on HUD public and assisted housing waiting lists, as well as people who might have applied at some future time if the housing had not been designated.  However, given the magnitude of the loss of units which is now more clearly verified, it is obvious that 30,000 vouchers cannot possibly make up for the loss of almost 300,000 subsidized units – including most of the supply of barrier free or accessible units that are needed by people with mobility or sensory impairments.  

Table 5: 2001 TAC/CCD Housing Task Force Estimate of the Loss of Subsidized Housing

HUD Assisted Housing “Inventory” Needed  

As mentioned earlier, under the elderly only designation laws, HUD assisted housing owners are not required to request or obtain HUD approval to designate their properties.  The CCD Housing Task Force and TAC believe that this flexibility in the law has led to some of the housing discrimination described in the HUD funded Abt Associates study.  It has also hampered efforts to determine the full impact of elderly only designation laws because there has been no on-going mechanism to track designation activity in HUD assisted housing.  

The Abt Associates study clearly indicates that a centralized database of HUD assisted housing properties with and without elderly only policies – in other words an “inventory” of HUD assisted housing – is needed to ensure that elderly only designation is implemented properly.  The inventory would help people with disabilities learn which properties have units that are restricted to elderly households and which properties still admit both elderly and disabled households (including those that have specific set-asides of units for people with disabilities that are required by law).  An inventory of HUD assisted housing that is available to people with disabilities looking for housing would go a long way towards addressing housing discrimination and would also permit HUD to accurately measure the full impact of elderly only designation laws.  

The CCD Housing Task Force began asking HUD to undertake this inventory in 1997.  Congress has also directed HUD to conduct such an inventory.  In 1999, in a report accompanying HUD’s appropriation bill, the House Committee on Appropriations directed HUD:  

To establish, maintain, and publish annually, an inventory of all housing that is designated in whole or in part for occupancy by elderly families, disabled families, or both.  The inventory shall include, but not be limited to, the number of apartments in buildings designated for occupancy only by elderly families, the number of apartments in buildings designated for occupancy only by disabled families, and the number of apartments in buildings with special features designed to accommodate disabled persons.  HUD is directed to work with the Committee in developing this inventory and to complete and publish it no later than March of 2000. 

House Report 106-286

As of January 20, 2001 when the last HUD Administration left office – and 10 months past the deadline established by Congress – the HUD assisted housing inventory had still not been made available.  

HUD’s failure to provide this inventory, as well as the evidence of discrimination evident in the studies described earlier, prompted the CCD Housing Task Force to file a formal fair housing complaint with HUD on January 17, 2001 .  This complaint, which was filed under Section 504 of the Rehabilitation Act of 1973, alleges that HUD’s failure to make public a list of properties that limit occupancy by non-elderly people with disabilities has harmed people with disabilities by unlawfully excluding them from federally assisted housing.  In addition, the complaint states that the lack of an inventory has interfered with HUD’s implementation of the congressionally mandated program of special Section 8 vouchers intended for people with disabilities negatively impacted by elderly only designation.  

Current Status of Elderly Only Designation Issues  

The CCD Housing Task Force Co-Chairs met with HUD Secretary Mel Martinez in July of 2001 to discuss HUD’s role in managing and monitoring the implementation of elderly only designation policies by PHAs and HUD assisted housing owners.  Secretary Martinez, who was confirmed by Congress earlier this year, pledged to complete the inventory of HUD assisted housing as soon as possible, and to address the housing discrimination issues raised in the CCD Housing Task Force’s fair housing complaint, which is still pending.  

Congress appears committed to continuing the policy of providing new vouchers for people with disabilities negatively affected by elderly only housing policies.  As this issue of Opening Doors went to press, both House and Senate versions of the next HUD budget – which will begin on October 1, 2001 – included approximately 6,000 new Section 8 vouchers specifically for this purpose.  Unfortunately, aside from continued support from Congress for new vouchers, there is not enough being done to create new subsidized housing units that people with disabilities can afford.  

A more comprehensive approach to mitigate the impact of designation, and produce new housing units that are both affordable and accessible to people with disabilities, is to also support the creation of a new federal housing production program targeted to the lowest income people, including people with disabilities.  Legislation to create this type of federal housing production program is now pending in the House (H.R. 2349) and Senate (S. 1248), and support for new affordable housing production is growing.  To address the problems outlined in this article, it is essential that any final legislation include: (1) provisions to target substantial amounts of funding for households below 30 percent of median income and (2) operating subsidies to ensure affordability for households with incomes as low as federal disability benefit levels.  More information on pending legislation is available from the National Low Income Housing Coalition’s website ( www.nlihc.org ).  

Finally, it is important the disability community not lose focus on the potentially negative consequences of elderly only designation policies in local communities.  PHAs will continue to designate elderly only housing, and, unless they are pressured by advocates, may not ask HUD for the Section 8 vouchers needed to replace the housing no longer available to non-elderly people with disabilities.  Some owners of HUD assisted housing are blatantly discriminating against younger people with disabilities, as described in the Abt Associates report, despite clear federal laws which prohibit this discrimination.  

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